Chief T. A Orji & Anor. V. Peoples Democratic Party & Ors. (2008)

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EJEMBI EKO, J.C.A.

On 14/4/2007 Independent National Electoral Commission (INEC) conducted election to the Abia State House of Assembly in Ukwa West Constituency. The Appellant and the 1st Respondent (Ikpechukwu Onuoha) contested that election with several other candidates. At the end of the poll INEC declared Appellant as duly elected and returned. Aggrieved the 1st Respondent, as petitioner, approached the Governorship/Legislative Houses Election Tribunal sitting at Umuahia, (hereinafter called the Tribunal) for redress. He sought reliefs inter alia that it be determined by the Tribunal that the 1st Respondent/Appellant did not score the majority of lawful votes cast in the said election; and that the Tribunal should declare that he was validly and duly elected or returned in the election having scored the majority of lawful votes cast in the said election, etc.

Pleadings were filed and exchanged at the Tribunal by the parties to the petition. At the pre-trial session all documents pleaded, including the polling station/unit results given to the Petitioner’s agents (Exhibits C1-C57 and D), the unit results given to the police (Exhibits YYY series), the results of the election duly certified by INEC and other documents were tendered and admitted in evidence. At the close of the pre-trial session INEC and its officials/agents (i.e. 2nd – 105th Respondents in the petition) indicated that they would neither tender documents nor call thirty witnesses. They did not tender any documents nor call witnesses to prove their reply to the Petition at the subsequent trial. Their counsel though participated in the proceedings by cross-examining witnesses called by the Petitioner and the 1st Respondent/Appellant. At the close of the trial all Counsel, including Counsel for INEC and its staff/agents, filed and exchanged written addresses which they subsequently adopted as their arguments in the petition at the Tribunal. In its considered judgment delivered on 21/1/2008 the Tribunal allowed the petition, reversed the return of the Appellant and in its stead returned the 1st Petitioner/Respondent as the person candidate who won the election.

Aggrieved by the decision of the Tribunal the 1st Respondent in the petition, now Appellant, through his Counsel, J.T.O. Ugboduma, Esq lodged his appeal (CA/PH/EPT/228/2008) on 12/2/2008 against the decision of the Tribunal. INEC and its officials (the 2nd – 105th Respondents in the petition) also through their Counsel, G. B. Obi, Esq. lodged their appeal (CA/PH/228A/2008) on 15/2/2008 against the decision of the Tribunal. The two appeals were on 19/6/2008 consolidated for ease and convenience. They however retain their separate and distinct identities. In this judgment they will be treated as such. The two appeals were argued on 14/10/2008. Counsel for all parties in the two appeals adopted their respective briefs as their respective arguments in the appeals.

CA/PH/EPT/228/2008

In addition to the written briefs filed and exchanged Ugboduma, Esq. for the Appellant filed list of additional authorities namely:-

NKIRU ONYEJIOCHA v. MADUAKO (unreported of this court no CA/PH/EPT/54A/2008 of 14/7/2008) and ABARAONYE v. EMEANA (2008) 10 NWLR (pt. 1096) 496 at 509 in respect of this contention that it is only INEC’s duly certified results, and not the party agents results, that are admissible in evidence. These additional authorities including UGOCHUKWU V. ORJI (unreported No.ABS/GOV/EPT/4 & 9/07 of 25/2/2008 by the Tribunal) cited in the Appellant’s amended brief are all in respect of Appellant’s issue No 1. Appellant’s counsel graciously supplied the certified True Copies of the reported authorities. Mr. BALOGU, counsel for the 1st and 2nd Respondents (Petitioners at the Tribunal) in his oral argument, in reply, submitted that the said authorities are in applicable to the present appeal. He then urged us to act on the additional authorities filed by them, Mr. Obi, counsel for 3rd – 105th Respondents (and 2nd – 105th Respondents at the Tribunal) had nothing further to urge in the oral addresses apart from adopting his brief.

The 1st and 2nd Respondents filed preliminary objection to all, except ground 9, of the Appellant’s grounds of appeal. The preliminary objections and the arguments thereon are incorporated in to the 1st and 2nd Respondents, Brief of Argument. The Appellant in the Appellant’s amended Reply Brief responded to each objection raised in the 1st and 2nd Respondents preliminary objection. I have given careful consideration to the preliminary objections and the Appellant’s response thereto.

On ground 1 of the Appellant’s grounds of appeal the objection is that the complaint in the ground does not represent the holding or decision of the Tribunal, and also that particulars of error (a) – (h) are incompetent. They are said to be narrative and argumentative. In the main, ground 1 complains that “the Tribunal erred in law when it held that the 1st petitioner/Respondent scored majority of lawful votes cast at the election by relying on Exhibit; C1 – C57 which were inadmissible evidence being hearsay”. No issue of Exhibits C1 – C57 being “inadmissible evidence being hearsay “arose at the trial and the judgment of the Tribunal. The objection is well founded. It is trite that ground of appeal must derive from the ratio decidendi of the decision of the Court in the judgment appealed against. See CHRISTABEN GROUP LTD. v. ONI (2008) 11 NWLR (pt.1097) 84 at 105; OBI v. INEC (2007) 11 NWLR (pt. 1046) 560; CO-OP, & COMMERCE BANK v. EKPERI (2007) 3 NWLR (pt.1022) 493.

Contrary to Appellant’s Counsel’s submission that at the trial 2nd – 105th Respondents raised this issue of inadmissibility of Exhibits C1-C57 at pages 1144 – 1146 and the Petitioners/Respondents respondent to it at pages 1188-1190 of the record I am of the view, upon reading the record, that the issue raised on Exhibits C1 – C57 at the trial was about the probative value to attach to the exhibits since they were not produced by the Petitioners agents at the polling stations who allegedly collected them from the presiding officers. There is a world of difference between admissibility or inadmissibility of a piece of evidence and the probative or weight value to be attached to it. The objection is hereby sustained. Ground 1 of the Appellants grounds of appeal is hereby struck out.

On ground 2 the objection is that the complaint is directed against a comment made obiter by the Tribunal and also that particulars of error (b) – (n) are incompetent for being narrative, argumentative, vague,verbose and imprecise.

The ground of appeal reads thus:-

The Honourable Tribunal erred when it held the in this petition where the Petitioners alleged falsification of results, it was not an issue that calls for determination as to which of the two sets of results tendered by the Petitioners was the genuine result recorded in the election.

Inspite of this comment the Tribunal at page 11431 of the record agreed to “equally consider same as the second issue for determination as formulated by 2nd – 105th Respondents.” That takes care of this objection. I agree with the 1st – 2nd Petitioners/Respondents that the complaint derives from the comment the Tribunal made obiter. The ground of appeal, being incompetent, is hereby struck out.